Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Parentage of:          )
                                            )       DIVISION ONE
A.M.,                                       )
                             Child,         )       No. 65555-8-I
                                            )
JOHN KARL FISCHER,                          )
                                            )
                      Respondent,           )       UNPUBLISHED OPINION
                                            )
              and                           )
                                            )
THERESA A. MCDONALD,                        )
                                            )
                      Appellant.            )       FILED: January 17, 2012
________________________________)

       Dwyer, C.J.  --  Theresa McDonald appeals orders providing for the care 

and support of her son A.M., claiming the trial court denied her a meaningful 

opportunity to be heard and entered orders contrary to the parties' agreements.  

She also claims the trial court erred by refusing to impute income to A.M.'s father 

and failing to award her the federal income tax exemption for the child.  Because 

McDonald fails to demonstrate error, we affirm.  We also deny McDonald's 

request for attorney fees on appeal.

                                            I

       Following a brief dating relationship with Dr. John Fischer, Theresa 

McDonald gave birth to their son, A.M., on February 13, 2008.  Fischer is a 

dentist with a practice in La Conner.  McDonald lives in Seattle and works for  

No. 65555-8-I/2

Nintendo as a Manager of Financial Systems.  Fischer filed a petition for a 

parenting plan and child support in December 2008.  The trial court entered a 

temporary parenting plan providing for A.M. to reside with McDonald a majority 

of the time, appointing a parenting evaluator, and ordering Fischer to pay child 

support to McDonald.   In November 2009, the parenting evaluator filed a report

recommending designation of Fischer as primary residential parent, a gradual 

increase of residential time with Fischer until the child resides with him a majority 

of the time, designation of Fischer as sole decision making authority for non-

emergency health care, and that McDonald participate in individual therapy to 

address her psychological issues.

       Following negotiations, the parties agreed that (1) they would have nearly 

equal residential time; (2) Fischer would have sole decision making authority for 

non-emergency health care; and (3) McDonald would commit to mental health 

evaluation and treatment if covered by her insurance.  The parties also agreed 

to have the trial court decide the remaining disputed issues on affidavits and 

argument.  Prior to the hearing, McDonald filed a brief requesting that (1) neither 

parent be designated as "custodian" or primary parent or that the designation 

alternate between the two annually; (2) the court impute income to Fischer and 

order Fischer to pay child support to McDonald; and (3) the court resolve 

disputes on certain details of the residential schedule. In his brief, Fischer 

asked the court to designate him as the primary or custodial parent and to order 

no transfer payment of child support based on the shared residential schedule.

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No. 65555-8-I/3

       At a hearing on February 3, 2010, the trial court heard argument.  On 

March 19, 2010, the trial court filed findings of fact and conclusion of law

establishing parentage, a parenting plan, and a child support order.  The trial 

court designated Fischer as the primary parent, ordered McDonald to pay child 

support to Fischer, and declined to impute income to Fischer.  On May 17, 2010, 

the trial court entered judgment against McDonald for sanctions previously 

imposed, ordered McDonald to reimburse Fischer for half of the evaluator and

mediation fees, and denied McDonald's motion for reconsideration.  

       McDonald appeals.

                                           II

       McDonald contends that she was denied due process and an opportunity 

to be heard when the trial court treated all matters as contested and resolved 

matters differently than previously agreed by the parties.  She claims she did not 

expect the court to address such matters based solely on documentary evidence 

and that she should have been allowed to present live testimony to rebut 

Fischer's evidence. But McDonald does not specifically identify in her argument 

any particular issue which she believes the trial court resolved in a manner 

contrary to the prior agreement of the parties. We will not comb the record to 

determine what portions of the orders on appeal McDonald intended to 

challenge or construct arguments for her.  See In re Estate of Lint, 135 Wn.2d. 

518, 532, 957 P.2d 755 (1998).  It is undisputed that McDonald agreed to have 

the trial court enter final orders based on affidavits and argument rather than 

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exercise her right to a trial.  She fails to identify or establish any error resulting 

from the procedure she requested.

                                           4 

No. 65555-8-I/5

                                           III

       Next, McDonald claims that the trial court erred by refusing to impute 

income to Fischer and by awarding a federal income tax exemption to each 

parent in alternating years.  We review a child support order for abuse of 

discretion.  In re Marriage of Bell, 101 Wn. App. 366, 370-71, 4 P.3d 849 (2000).  

       If a parent is "gainfully employed on a full-time basis" the court may not 

impute income to that parent "unless the court finds that the parent is voluntarily 

underemployed and finds that the parent is purposely underemployed to reduce 

the parent's child support obligation." RCW 26.19.071(6). McDonald claims 

Fischer is underemployed because he works only four days per week.  But 

Fischer filed a declaration describing his employment as full time, in that he sees 

patients four days per week, and spends at least part of the fifth day in the office 

"running the business" or "doing paper work, conference calls, office repairs, 

yard maintenance, etc."  Clerk's Papers at 491.  Because the trial court was 

entitled to accept Fischer's testimony to determine that Fischer is employed on a 

full-time basis and nothing in the record requires a finding that Fischer is 

voluntarily underemployed for the purpose of reducing his child support 

obligation, there was no lawful basis to impute income to him.  RCW 

26.19.071(6); In re Marriage of Peterson, 80 Wn. App. 148, 155, 906 P.2d 1009 

(1995).  McDonald fails to establish error.

       Under RCW 26.19.100, the trial court "may divide the exemptions 

between the parties, alternate the exemptions between the parties, or both."  

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No. 65555-8-I/6

McDonald argues that the trial court should have awarded her the exemption 

because she would realize a significant benefit and because Fischer owns a 

business and a home while she does not.  The record establishes that the trial 

court considered her request and her arguments and decided to alternate the 

exemptions between the parties.  Because this decision is clearly within the trial 

court's wide discretion under RCW 26.19.100, McDonald fails to establish error.

                                           IV

       Finally, McDonald requests attorney fees on appeal under RCW 

26.26.140 because she is struggling financially and recently filed for bankruptcy.  

The record reflects that McDonald is gainfully employed, earning over $100,000 

annually.  We exercise our discretion and deny her request for an award of fees.

       Affirmed.

We concur:

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